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This picture of the Supreme Court was taken before Antonin Scalia’s death on Feb­ruary 13, 2016 (Photo: Wikipedia / Courtesy).

As the Supreme Court has grown more politi­cized in the last century, con­tentious con­fir­mation hearings have increas­ingly become the norm for Supreme Court nom­i­na­tions. As a result, calls for term limits on its members have emerged in recent decades. While the dys­function within the con­fir­mation process should cer­tainly raise con­cerns, ending life tenure for the jus­tices won’t solve this problem or stop the politi­cization of the Supreme Court.

Before Justice Anthony Kennedy’s retirement, con­ser­v­a­tives had called for term limits on its members as the High Court delivered deci­sions that were unfa­vorable toward their pre­ferred results. Since Kennedy’s replacement, calls for judicial term limits began to increase among those on the left, who now fear that the court will render unfa­vorable or more con­ser­v­ative deci­sions.

A left-leaning interest group called “Fix The Court ” has helped lead the charge for term limits. The group faults lifetime appoint­ments for con­tentious con­fir­mation hearings, such as the one Justice Brett Kavanaugh endured last fall.

Despite our Constitution’s allowance of life tenure for jus­tices since its inception, Supreme Court nom­i­na­tions did not receive the level of scrutiny expe­ri­enced today until Pres­ident Woodrow Wilson’s 1916 nom­i­nation of Louis Brandeis in 1916, who became the first to undergo an actual Senate con­fir­mation hearing due to his more pro­gressive views of the law.

Sup­porters of term limits argue that life tenure turned the nation’s highest court into a par­tisan political body, and that removing life tenure would allow the Court to stay above the political fray. Some claim that a lifetime appointment incen­tivizes a justice to remain on the bench until the election of a new pres­ident who shares that justice’s political views. Those in favor of term-lim­iting the court claim that as a result, a justice can con­tinue inserting his political agenda into law by ensuring that whoever replaces him will con­tinue this insertion even after he retires.

By focusing on ending this pattern, however, sup­porters of judicial term limits from both sides of the political aisle do nothing to address the primary problem behind the Supreme Court’s politi­cization. In addressing this problem at the raucous Kavanaugh con­fir­mation hearings, Senator Ben Sasse, R‑Neb., rightly syn­the­sized the problem for what it is: Con­gress’ con­tinual delin­eation of power to the exec­utive branch and its bureau­crats.

Article I of the Con­sti­tution says “all leg­islative Powers herein granted shall be vested in a Con­gress of the United States,” it is Con­gress that should be the center of national pol­itics, not the Supreme Court. After all, Con­gress, as a body con­sisting of the people’s elected rep­re­sen­ta­tives and sen­ators, is the branch that is closest to the people.

Under our nation’s repub­lican form of gov­ernment, it is the people, not judges or admin­is­trative tech­nocrats, who have the ultimate say on what our laws should be. Hence, it made sense to our founders that Con­gress be not only the most pow­erful branch, but also the branch that holds leg­islative power. Yet, Con­gress con­tinues to del­egate more of its law-making power to exec­utive agencies and the judi­ciary, both of which are less accountable to the people. As a result, more of the laws that affect our daily lives and country as a whole orig­inate, not from our elected members of Con­gress, but from exec­utive agency bureau­crats.

As Sasse further pointed out at the hearing, it’s no wonder why so many Amer­icans feel dis­en­fran­chised. Many of the political deci­sions that affect us come not from their elected law­makers, but rather from the exec­utive and judicial branches.

Decades of pro­gressive leg­is­lation have given bureau­crats massive leeway in inter­preting statutes and pol­i­cy­making. These unelected offi­cials make new policies as a result, and the people cannot rely on their con­gressmen or sen­ators to repeal them. The American people have no other choice but to sue to overturn those policies, devel­oping into cases that even­tually embroil the Supreme Court.

One such highly politi­cized case was decided by the High Court this past summer, in which the Department of Com­merce attempted to place a cit­i­zenship question into the 2020 Census. Though Clause 3 of Article I, Sec. 2 of the Con­sti­tution gives Con­gress the power to decide the method of how the census is to be con­ducted, Con­gress del­e­gated authority to the Com­merce Department. Had Con­gress retained that authority, oppo­nents of the cit­i­zenship question would then not have to rely on the courts to have that policy over­turned.

It is evident the Court faces dif­fi­culty func­tioning inde­pen­dently since many people have become reliant on lit­i­gation rather than the next election to solve the big political ques­tions of the day.

In trying to fix the Supreme Court with term limits, sup­porters do nothing to shift pol­itics away from the judi­ciary. They fail to fix the real problem: a Con­gress that gives up too much of its law­making authority. They instead fall into the deadly trap of making their pol­itics dependent upon unelected judges. To quote Justice Ruth Bader Ginsburg, it is Con­gress that is the “obvious culprit,” not the courts.

If Amer­icans want to defuse the par­tisan envi­ronment sur­rounding the Supreme Court, they must con­vince Con­gress to reclaim its leg­islative authority. As Sasse further put it, “people shouldn’t… be protesting in front of the Supreme Court. They should protesting in front of this body [Con­gress].”

This is not to dis­count the need for appointing and con­firming the right people to the bench. The judi­ciary cer­tainly needs jurists who have rev­erence for the law and respect for our Con­sti­tution so that it would not insert itself too much into the political fray. The Trump admin­is­tration so far has done a great job on appointing those types of jurists such as Jus­tices Gorsuch and Kavanaugh.

However, Amer­icans also need to take up the burden of fixing Con­gress. Simply term-lim­iting the Supreme Court won’t give leg­islative authority back to Con­gress. If we cannot get our elected members of Con­gress to take back their leg­islative authority and use it to solve our problems, then we have truly shown that we cannot govern our­selves, and as a result, we will have del­e­gated away our nation’s char­acter as a republic.